) ) HER MAJESTY THE QUEEN Respondent – v. –, 2017 ONSC 6008

CITATION : R. v. Barra and Govindia, 2017 ONSC 6008 COURT FILE NO.: 16-20006 DATE: 2017/10/06 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN Respondent – and – ROBERT THOMAS BARRA Respondent – and – SHAILESH HANSRAJ GOVINDIA Respondent ) ) ) ) ) ) ) ) )) ) ) )) Moray Welch and Emma Beauchamp, for the Crown Seth P. Weinstein and Naomi M. Lutes, for the Applicant, Robert Thomas Barra Graeme A. Hamilton and Alannah Fotheringham for the Applicant, Shailesh Hansraj Govindia ) ) HEARD: May 25, 2017 RULING ON STAY APPLICATIONS PURSUANT TO S.11(

b) OF THE CHARTER LABROSSE J. Overview [ 1 ] The Applicants move for a stay of proceedings on the basis that their right to be tried within a reasonable time as guaranteed by s.11(

b) of the Canadian Charter of Rights and Freedoms (the “ Charter ”) has been infringed. [ 2 ] On June 4, 2014, the Applicants were first charged along with Dario Berini with an offence under the Corruption of Foreign Public Officials Act, (S.C. 1998, c. 34) (the “ CFPOA ”) relating to an alleged bribery of a foreign official. The Applicant Govindia was also charged with fraud under s. 380 of the Criminal Code , R.S.C., 1985, c. C-46 (the “Code ”) . In January 2015, the fraud charge against Mr. Govindia was replaced with a theft charge.

In November 2016, the indictment was preferred as against the three defendants and in January 2017, the Crown severed the Applicants from Mr. Berini. [ 3 ] The parties agree that the time frame under consideration for this application is June 4, 2014 to the end of trial on February 9, 2018, approximately 44 months. [ 4 ] The applications raise the following issues: − What is the appropriate ceiling for a matter which proceeds without a preliminary inquiry as a result of a preferred indictment in

the Superior Court?; − For the Applicant Barra: Does a waiver provided to delay the start of a preliminary inquiry reduce the overall period of net delay when the period covering the waiver did not actually delay the trial date as a result of the preferred indictment?; − For both Applicants: an 8-week defence delay period; − For the Applicant Barra: Is a 19-month period from June 4, 2014 to January 5, 2016 relating to the extradition process and the time it took for Mr.

Barra, a citizen of the US, to attorn to the Canadian jurisdiction a discrete event which should be deducted from the total delay?; − For the Applicant Govindia: Is a 19-month and 3-week period from June 4, 2014 to January 18, 2016 relating to the extradition process and the time it took for Mr.

Govindia, a citizen of the UK, to be extradited to Canada a discrete event which should be deducted from the total delay?; and, − Is any period of delay which is above the applicable presumptive ceiling reasonable as a result of being justified due to the complex nature of the case? [ 5 ] For the reasons which follow, I have come to the following conclusions with respect to the issues identified in paragraph 4 above:

(1) The appropriate ceiling : I conclude that the appropriate ceiling for this case which proceeded by way of preferred indictment continues to be subject to the 30-month presumptive ceiling set out in the Jordan decision for matters proceeding in the Superior Court of Justice;

(2) The waiver : I reject the position advanced by Mr. Barra that his waiver was made without a full appreciation of its effect given that the Crown proceeded with a preferred indictment. However, I decline to deduct the 7-month period from March 2017 to October 2017 from the total delay. The waiver had no impact on the total delay of this case since the delay in scheduling the preliminary inquiry did not delay the trial date as a result of the preferred indictment;

(3) Defence delay : I conclude that the proper period of defence delay for the period from February 3, 2016 to March 11, 2016 and from January 8, 2018 to January 22, 2018 is 8 weeks for Mr. Barra and 6 weeks for Mr. Govindia;

(4) Extradition process for the Applicant Barra as a discrete event : I conclude that the extradition process is a discrete event for which time should be deducted from the overall delay. The 19-month period from June 4, 2014 to January 5, 2016 should be reduced by 4 months to account for periods where the Crown has failed to demonstrate that it proceeded with reasonable diligence in the extradition process;

(5) Extradition delay for the Applicant Govindia as a discrete event : I conclude that the extradition process is a discrete event for which time should be deducted from the overall delay.

The 19-month and 3-week period from June 4, 2014 to January 28, 2016 should be reduced by 4 months to account for periods where the Crown has failed to demonstrate that it proceeded with reasonable diligence in the extradition process. [ 6 ] I thus conclude that the total period of delay is: − for the Applicant Barra: 27 months; − for the Applicant Govindia: 26 months and 3 weeks. [ 7 ] The Applicants have failed to discharge their onus of demonstrating that a delay below the 30 month presumptive ceiling remains otherwise unreasonable in the circumstances. [ 8 ] Finally, if the total delay had remained above the presumptive ceiling, a delay of as much as 35 months would be reasonable in these circumstances given the complexity of this case, particularly during the early stages due to the extradition process.

Relevant Evidence Extradition Procedure [ 9 ] On June 4, 2014, the Applicants were charged in relation to an alleged bribery of a foreign official pursuant to s. 3 of the CFPOA. The Applicant Govindia was also charged with fraud pursuant to s. 380 of the Code . The charges arise out of a similar set of facts which resulted in the prosecution of Nazir Karigar pursuant to the CFPOA . Mr. Karigar was tried in the Ontario Superior Court in the fall of 2012 and convicted on August 15, 2013. [ 10 ] A three-week judge-alone trial is set to commence on January 22, 2018, thereby concluding on February 8, 2018.

Accordingly, the trial of this proceeding will conclude 44 months from the date the Applicants were first charged. [ 11 ] The Applicant Barra is an American citizen. The Applicant Govindia is a citizen of the United Kingdom. Warrants were issued for their arrests on June 4, 2014. Mr. Barra attorned to the Canadian jurisdiction and was in court on January 5, 2016. Mr. Govindia was extradited to Canada from the UK and was in court on January 28, 2016. [ 12 ] Each of the parties have provided me with their

interpretation of various events which have transpired between June 2014 and

January 2016. The Applicants justify their respective steps prior to their arrival in Canada and challenge a number of steps taken by the Crown. Essentially, the Applicants state that they actively pursued the terms of their voluntary surrender and that the Crown did not act reasonably during this period in either pursuing an agreement for release or moving forward with the extradition process. [ 13 ] For Mr. Barra, the timeline leading up to his arrest is simpler. He retained counsel promptly after being charged and the initial disclosure was sent on October 23, 2014.

Crown counsel advised on June 2, 2015 that the extradition request was ready to be sent to the United States. Over the next few months, counsel negotiated by correspondence the surrender and an acceptable release plan for Mr. Barra. On January 5, 2016, Mr. Barra voluntarily flew to Canada to surrender to the charges. He was arrested at the airport and brought to court where he was immediately released on a recognizance of bail. As a result of his voluntary surrender, the extradition request was withdrawn. [ 14 ] For Mr.

Govindia, he initially retained UK counsel and the Crown advised within weeks of the charges being laid of the Crown’s intention to extradite. In October 2014, an undertaking in regards to Crown disclosure was sent to Mr. Govindia’s UK barrister. There were delays relating to the undertaking which eventually led to disclosure being sent to Mr. Govindia’s UK barrister on November 6, 2014 although on December 7, 2014, Mr. Govindia’s UK barrister indicated that he had not yet received the disclosure. It is unclear as to what date the disclosure was ultimately received by Mr. Govindia’s UK barrister. [ 15 ] Mr.

Govindia began feeling ill in May 2015 and in August 2015, he was diagnosed with tuberculosis. Steps were then taken to obtain the necessary medical evidence to allow Mr. Govindia to travel to Canada. On December 14, 2015, the Crown and counsel for Mr. Govindia agreed on the amount of Mr. Govindia’s cash deposit for his bail recognizance. On January 14, 2016, the Crown confirmed that the health issues concerning Mr. Govindia had been dealt with. Mr. Govindia was then extradited on January 27, 2016 and appeared in court on January 28, 2016.

He was released on his own recognizance with an $80,000 cash deposit. [ 16 ] On the extradition front, the Crown provided evidence detailing the process that was followed to prepare the extradition affidavits for the UK extradition of Mr. Govindia and the US extradition of both Mr. Barra and Mr. Berini. Of relevance to this application, there were two affidavits relating to the Berra extradition and two affidavits relating to the Govindia extradition.

In each case, one affidavit was taken by Corporal Melanie Laroche of the RCMP and one affidavit was taken by Moray Welch, crown prosecutor with the Public Prosecution Service of Canada (“PPSC”). [ 17 ] The Crown’s evidence describes how the central authority in Canada for making extradition requests is the International Assistance Group (“IAG”) at the Department of Justice.

The evidence details how the lawyer at the IAG worked with Crown counsel from the PPSC and the investigator of the RCMP to finalize the form of the required affidavits. [ 18 ] From July 15, 2014 to May 21, 2015, the evidence shows that various drafts of the US and UK extradition affidavits were exchanged. This 10-month period is marked by some periods of inactivity in August 2014, December 2014, January 2015 and April 2015.

On May 21, 2015, the affidavits are approved by counsel at the IAG. [ 19 ] In April and May 2015, the Canadian Border Services Agency of Canada produced two Impact Analysis reports for the extraditions of Mr. Barra and Mr. Govindia with respect to any issues removing the subjects from Canada after completion of their sentence. [ 20 ] The evidence confirms that the formal extradition requests were made at the end of June 2015. [ 21 ] On September 1, 2015, a UK Metropolitan Police officer attends at Mr. Govindia’s home to arrest him on an extradition warrant. An agreement is reached whereby Mr.

Govindia voluntarily attended at the police station on September 11, 2015, was arrested and released on bail. The extradition proceeding was adjourned to November 9, 2015. On November 9, 2015, Mr. Govindia consented to his extradition, subject to arrangements being made for his travel given the diagnosis of tuberculosis. [ 22 ] As for Mr. Barra, US authorities requested additional information from July to September 2015 leading up to a request on September 22, 2015 by the US Marshall Service to obtain “a good photo, and other personal identifiers, and prints” for Mr. Barra.

It appears from the evidence that the extradition process was not concluded for Mr. Barra as he voluntarily travelled to Canada on January 5, 2016 at which time the request for extradition to Canada was withdrawn. Court Proceedings [ 23 ] The charges against Mssrs. Berini, Barra and Govinda were laid on June 4, 2014. On January 13, 2015, a new information was sworn and the charge of fraud against Mr. Govindia was changed to a theft charge pursuant to s. 334 of the Code . [ 24 ] On March 26, 2015, Mr. Berini voluntarily travelled to Canada. He was arrested and released on a recognizance of bail and a surety. Mr.

Berra voluntarily travelled to Canada on January 5, 2016 which obviated the need for extradition. This was some 9 months after Mr. Berini did so. Mr. Govindia was extradicted to Canada from the UK and arrived on January 28, 2016. [ 25 ] A judicial pre-trial was held on January 22, 2016 and was attended by counsel for all three accused and the Crown. On February 3, 2016, all parties appeared in court but the matter could not proceed as the defendants did not have statements of issues and the court did not have the “salmon” sheet which would allow for a preliminary hearing date to be set.

The matter was put over to February 17, 2016. [ 26 ] On February 17, 2016, all parties had still not filed their statement of issues and the matter was put over to February 24, 2016. On that date, the defendants sought an adjournment to March 11, 2016 which was consented to by the Crown. [ 27 ] On March 11, 2016, Mr. Berini and Mr. Berra waived their 11(

b) rights but Mr. Govindia did not. The parties were still trying to secure a preliminary inquiry date. There was consideration of the possibility to sever the charges as against Mr. Govindia. The

matter of severance was addressed again on April 15, 2016 at which time the Crown stated its objection to severance and Mr. Govindiawas advised that he could make an application for severance if he wished to do so. The matter was put over to December 12, 2016. [28] On November 16, 2016, the Crown preferred a direct indictment and on December 12, 2016, a trial date was set for fiveweeks commencing on November 5, 2018. The Crown then severed the Applicants from Mr. Berini on January 18, 2017 and the Courtset the trial dates for the Applicants starting on January 22, 2018 for three weeks.

The Law [29] As of July 8, 2016, the Supreme Court of Canada’s decision in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 guides thisCourt for determining issues of delay and the effect on an accused person’s s.11(

b) Charter protected rights. Jordan sets the temporalceilings for the prosecution of criminal cases in Canada. The decision dramatically changed the law in deciding whether an accused’sright to be tried within a reasonable time had been violated. [30] In R. v. Coulter, 2016 ONCA 704 , 133 O.R. (3d) 433, at paras. 34-41, the Court of Appeal for Ontario summarizedthe approach to be taken under the new Jordan framework as follows: i. Calculate the total delay, from the date the charges were laid to the actual or anticipated end of trial. ii.

Subtract defence delay from the total delay to calculate the net delay. iii. Compare the net delay to the presumptive ceiling. If the net delay exceeds the presumptive ceiling, it is presumptivelyunreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. Absent exceptionalcircumstances, a stay will follow. iv. Exceptional circumstances can include discrete events or particularly complex cases. v. Delay caused by discrete events is subtracted from the net delay for the purpose of determining whether the presumptiveceiling has been reached. vi.

Where there is delay resulting from the fact that a case is particularly complex and the presumptive ceiling is exceeded, thecourt must consider whether the particular complexity was such that the time the case took is justified and the delay is reasonable. vii.

If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable. [31] Exceptional circumstances are ones that lie outside the Crown’s control in the sense that they are reasonably unforeseen orreasonably unavoidable and Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as circumstances meet this definition, they will be considered exceptional: see Jordan, at para. 69. [32] In R. v. Shum, 2017 ONSC 336, Maranger J. provided a very helpful and succinct

summary of the essential governingprinciples or framework to be taken from the Jordan case:

i) There is a 30-month presumptive ceiling for matters tried in the Superior Court of Justice. The clock runs from the datethat the accused is charged and ends with the actual anticipated end of the trial.

If that timeframe exceeds 30 months there is apresumption that the delay has become unreasonable. ii) There is a three-step analysis to be used: first calculate the delay; second deduct from the total any delay waived by defenceor caused by the conduct of the defence; third, where the net total exceeds the presumptive ceiling, the onus shifts to the Crown to rebutthe presumption of unreasonable delay by demonstrating that there are exceptional circumstances.

If the Crown fails to do so, a staymust follow. iii) In cases that were in the system prior to July 8, 2016 there is a fourth step, where the delay exceeds the presumptiveceiling, the Crown can nonetheless invoke transitional, exceptional circumstances, the Crown has to demonstrate that the time wasjustified on the basis of relying on the previous state of the law. iv) Defence waiver can be explicit or implicit. It has to be clear and unequivocal, a complete understanding of the right and theeffect of waiving the right must be demonstrated.

v) Delay attributable to the Defence would include: conduct that causes or directly contributes to delay; calculated tacticsdesigned to delay the matter, such as frivolous applications or requests; defence unavailability, so long as both the court and the Crownare ready to proceed. If they are not, the delay will not be found to be caused by the Defence. vi) Any conduct by the Defence undertaken to legitimately respond to the charge will fall outside of the definition of Defencedelay. vii) Exceptional circumstances are those that are outside of the control of the Crown.

They have to be reasonably unforeseen orunavoidable and the Crown must not have been able to reasonably remedy the delay caused in the circumstances. They come into twocategories: discrete events and particularly complex cases. Importantly, when such a delay occurs, it is incumbent upon the Crown andthe court to do what it can to mitigate the effect of the delay. The seriousness of the offence standing alone will not be considered anexceptional circumstance.

viii) The court also established guidelines for dealing with transitional cases (cases currently in the system). While the new framework applies it has to be applied contextually and flexibly. For cases that exceed the presumptive ceiling, “a transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the party’s reasonable reliance on the law as it previously existed”.

Thus, the factors that were relevant under the Morin framework can inform the analysis of cases in the system before Jordan. ix) In cases that fall below the presumptive 30-month ceiling, stays will be rare and limited to the clearest of cases.

The reason being that the ceiling “factored in tolerance for reasonable institutional delay established in Morin , as well as the inherent needs and the increased complexity of most cases” (para. 83) Jordan further indicated that staying proceedings will be difficult to obtain for cases currently in the system that are beneath the presumptive ceiling, given the level of institutional delay tolerated under the previous approach.

x) If the period of delay is under 30 months in the Superior Court of Justice, the burden shifts to the Defence to show that the delay is unreasonable. The Defence must show that it took meaningful, sustained steps to expedite the proceeding, and that the case took markedly longer to conclude that it should have. [ 33 ] In 2017, two further decisions provide guidance to the Court on the Jordan analysis: R. v. Cody , 2017 SCC 31 and R. v. Picard , 2017 ONCA 692 . In Cody , the Supreme Court of Canada reaffirmed the Jordan framework, stressing that every actor in the justice system has a responsibility to ensure criminal proceedings are carried out in a manner consistent with an accused’s 11(

b) Charter rights. Relevant to this application is the direction of the Supreme Court of Canada with respect to exceptional circumstances. Unlike discrete events, complexity requires a qualitative assessment, not a quantitative assessment. It is an error for a trial judge to deduct a specific period of time for complexity: see Cody at para. 64 . [ 34 ] In Picard , the Court of Appeal also provided direction when dealing with exceptional circumstances and particularly the issue of complexity which is relevant to this Application.

The Court of Appeal confirmed that complexity must be considered as part of a broader analysis of the case as a whole. Some cases may be particularly complex in the earlier stages and require extensive disclosure, expert evidence and witness statements only to be made simpler and more straightforward when it comes time for trial: see Picard at para. 62 .

Analysis The Ceiling [ 35 ] Before proceeding with the calculation of the total delay for the purposes of the Jordan analysis, the Applicant Barra has raised the initial issue of determining what the appropriate ceiling is in a case where the Crown has preferred the indictment and the accused does not have the benefit of a preliminary hearing. [ 36 ] Mr. Barra takes the position that the appropriate ceiling in this case is 18 months, not 30 months as none of the features of a case before the Superior Court are present. Mr.

Barra points particularly at the preferred indictment which removed the Applicants’ right to a preliminary hearing. It is acknowledged by Mr. Barra that there are authorities of this court, such as R. v. Nyznik , 2017 ONSC 69 which do not support his argument on the proper ceiling of this case. [ 37 ] It would be oversimplifying to determine the appropriate ceiling based upon if a preliminary inquiry had taken place. As stated by Nordheimer J. in Nyznik , there are different reasons why a preliminary inquiry may not occur, and the preferring of an indictment is but one of them.

Further, the preferring of an indictment can happen at different stages of the proceedings and even after a preliminary inquiry where an accused has been discharged. In the present circumstances, the indictment was preferred some 10 months after the Applicant Berra had attorned to the jurisdiction and following the release of the Jordan decision. [ 38 ] Finally, I agree with the views expressed by some courts that the Supreme Court of Canada had the opportunity in Jordan to create an exception to the 30-month ceiling in the Superior Court for cases that have not had a preliminary inquiry.

This was not done and I am not inclined to do so. I conclude that the appropriate ceiling in these circumstances continues to be 30 months. Defence Delay: Waiver of delay [ 39 ] In early 2016, the parties were having challenges finding suitable dates for the preliminary inquiry. In February 2016, counsel for Mr. Berini advised that he was no longer available for the first agreed upon dates for a preliminary inquiry, tentatively scheduled for March of 2017. In order to agree to setting dates for the preliminary inquiry in October of 2017, both Mr. Berini and Mr. Barra waived their rights pursuant to s. 11(

b) of the Charter . Mr. Govindia did not. [ 40 ] This led to discussions between the parties of possibly severing the Govindia matter from the other two, but the Crown expressed that it did not wish to do so. Mr. Govindia was also invited by the Crown on April 15, 2016 to consider bringing a severance application and the matter was adjourned to December 2, 2016. [ 41 ] On November 16, 2016, the Crown preferred a direct indictment against all three accused and subsequently, trial dates were set for all three accused commencing on November 5, 2018. On January 18, 2017, the Crown severed the Applicants from Mr.

Berini and a new trial date for the Applicants was set to commence on January 22, 2018. [ 42 ] The Crown stated in their Factum that the period of waiver should be from March 11, 2016 until October 10, 2017, being a period of 19 months. During the oral argument of this Application, the Crown conceded that the period of the waiver should actually be 7 months, being from the tentative first available date for the preliminary inquiry in March 2017 to the confirmed date for the preliminary inquiry, namely October 2017.

[ 43 ] Counsel all agreed that the delay to set trial dates after a preliminary hearing held in March 2017 would have been at least 12 months. Thus, if the preliminary inquiry had proceeded on the first available date of March 2017, there would not have been a trial date set before March 2018. However, as a result of the Crown’s action to prefer the indictment and then to sever the Applicants from Mr. Berini, this allowed for earlier trial dates to be set for the Applicants in January 2018. [ 44 ] Mr.

Barra has raised the issue that the waiver should not be counted because the purpose of the waiver did not materialize itself as result of the preferred indictment. I do not agree. The waiver provided was not conditional on a preliminary inquiry taking place. The preferring of an indictment is always a possibility and as such I disagree with this submission. [ 45 ] I am left to question the effect of the waiver which forms part of Defence Delay as per the Supreme Court of Canada in Jordan . [ 46 ] I conclude that the waiver provided on March 11, 2016 by Mr.

Barra had no impact on the 44-month delay to the conclusion of the trial of this matter for the following reasons: (

a) the purpose of the waiver was to have the Crown agree to delay the setting of the preliminary inquiry dates from March 2017 to October 2017. However, Mr. Govindia did not agree to the waiver and the Crown agreed in any event to the delay in setting the preliminary inquiry dates; (

b) had the Crown insisted on the first available dates for the preliminary inquiry in March 2017, the trial would not have commenced before March 2018. Thus, the purpose of requiring the waiver by the Crown was to accept that trial dates would not have been set until the conclusion of the preliminary inquiry in October 2017. Practically, it was to agree to a commencement of trial in October 2018 rather than March 2018; (

c) consequently, the waiver did not form part of Defence Delay within the 44-month period under consideration in this Application because the trial of this matter is now set to proceed in January 2018; (

d) the waiver is not part of any Defence Delay within the 44-months ending on February 9, 2018. It was to accommodate delay from March 2018 to October 2018 and is thus moot. [ 47 ] I appreciate the Crown’s argument that we cannot assume what would have happened in March 2016 if Mr. Berini and Mr. Barra had not provided their waiver. The Crown may have preferred the indictment sooner and this may have allowed for trial dates being set at some earlier point in 2017. However, within the Jordan analysis, the issue of a waiver relates to the effect the waiver has on the total period of delay.

In this case, the waiver had no impact on the total period of delay and no deduction should be made for defence delay on this issue.

Defence Delay: Delay due to defence action [ 48 ] I have considered the position of the parties on the defence delay which relates to the period from February 3, 2016 to March 11, 2016 and also from January 8, 2018 to January 22, 2018. [ 49 ] The Crown states that during this period, the defence delay should be attributed to both Applicants as the matter was moving forward towards a preliminary inquiry with all three defendants still being under the same indictment and the joint trial continued to be reasonable and justified: see R. v. Brissett et al. , 2017 ONSC 401 at para. 49 . [ 50 ] However, in R. v.

Gopie , 2017 ONCA 728 , the Court of Appeal has expressed that delay by one accused should not be attributed to all. An individualized approach should be taken to the attribution of defence-caused delay in cases of jointly-charged accused. The Court must therefore determine if both Applicants share in the periods of defence delay or if they are attributable to only one of them. [ 51 ] I believe that both Applicants should share in the delay from February 3, 2016 to March 11, 2016 when the Applicants delayed in filing their Statement of Issues.

The evidence shows that the main reason for delay during these periods related to the Applicants not having filed their Statement of Issues which were required by the Court prior to setting the preliminary inquiry dates. [ 52 ] However, during the period from January 8, 2018 to January 22, 2018, it was only counsel for Mr. Barra who was responsible for the two-week delay at the start of trial [ 53 ] I therefore conclude that period of defence delay for Mr. Barra should be 8 weeks and for Mr. Govindia it should be 6 weeks. [ 54 ] This leaves total net delay of 42 months for Mr.

Barra and 42 months and two weeks for Mr. Govindia. Exceptional Circumstances [ 55 ] The Jordan analysis then moves on to the consideration of exceptional circumstances that lie outside the Crown’s control. Exceptional circumstances generally fall into two categories: (1) discrete events; and (2) particular complexity arising from the evidence or the issues: see R. v. Picard at para. 38 . Discrete events are subtracted from the total period of delay.

In addition, a case identified as being particularly complex can justify a period of delay which exceeds the presumptive ceiling. [ 56 ] A discrete event is subtracted from the net delay. A particularly complex case can justify a total delay which is above the ceiling: see Cody at paras. 48 and 64 .

i) Extradition as a Discrete Event [57] The question as to whether or not an extradition case amounts to a discrete event is relatively easy to answer given that it wasspecifically used as an example of a discrete event by the Supreme Court of Canada in Jordan: see para. 81. [58] However, it has been held that the reduction attributable to a discrete event is subject to the reasonable diligence by theCrown to bring an accused outside of Canada to trial: see R. v.

Lee, (2015) 2015 SKCA 53 , 323 C.C.C. (3d) 313 at para. 57. [59] The Crown argues here that the full amount of the extradition process must be considered a discrete event. A total of 19months for Mr. Barra and 19 months and 3 weeks for Mr. Govindia. I have carefully considered the evidence relating to the Crown’sattempts to bring the Applicants to Canada and I make the following findings: (

a) from the date the extradition requests are forwarded to the foreign states (June 22, 2015 for Mr. Govindia and June 26, 2015for Mr. Barra) to the date each attended in court in January 2016 (January 8, 2016 for Mr. Barra and January 28, 2016 for Mr. Govindia),the extradition process played itself out and the time required was beyond the control of the Crown. This portion of the extraditionprocess was clearly a discrete event. This period of delay was under the control of the foreign states and clearly amounts to the type ofdiscrete event contemplated in Jordan.

No evidence suggests that the Crown had any ability to speed up the extradition process after theapplications were forwarded to the foreign states; (

b) it is the period from June 4, 2014 until the extradition requests were forwarded to the foreign states (June 22, 2016 for Mr.Govindia and June 26, 2015 for Mr. Barra) that is subject to scrutiny for reasonable diligence. The evidence of Karla Kincade establishesthe nature of the extradition process in Canada. The Crown works with the RCMP and the International Assistance Group (“IAG”) whoreviews and coordinates all extradition requests. The following timeline provided by Ms. Kincade is of relevance to assessing if theCrown has acted with reasonable diligence: (

i) the research into the extradition process started at the RCMP in January 2014 and case files for extradition were opened atIAG in May 2014; (ii) the charges were laid against both Applicants on June 4, 2014; (iii) disclosure from the RCMP was sent to counsel for the Applicants in October and November 2014; (iv) the Applicants’ co-accused, Mr. Berini voluntarily travelled to Canada on March 26, 2015, prior to the extradition requestbeing made; (

v) drafting of RCMP and PPSC affidavits commenced on July 15, 2014 and ended on May 21, 2015; (vi) final versions of the RCMP and PPSC affidavits were sent to IAG on April 24, 2015; (vii) the RCMP and PPSC affidavits received final approval from IAG on May 21, 2015; (viii) sworn versions of the approved RCMP and PPSC affidavits were forwarded to IAG on May 28, 2015; (ix) extradition request for Mr. Govindia forwarded to the UK authorities on June 22, 2015; and (

x) extradition request for Mr. Barra forwarded to the US authorities on June 26, 2015. [60] The period of time required to draft the RCMP and PPSC affidavits is said to have been over 11 months. No evidence wasprovided by the Crown of efforts made to speed up the process involved in the preparation of the affidavits. The Crown relies on 18 e-mails which demonstrate how the RCMP, IAG and PPSC worked together to produce the final versions of the affidavits. A closer lookat this period demonstrates a series of periods of inactivity and I highlight the following: (

i) July 15, 2014 to September 25, 2014; (ii) October 15, 2015 to November 6, 2014; (iii) November 6, 2014 to December 18, 2014; and (iv) December 18, 2014 to January 20, 2015. [61] The above four periods of inactivity amount for roughly 5 months during the affidavit drafting process where little workseems to be accomplished. [62] I conclude that the Crown has failed to demonstrate that it proceeded with reasonable diligence during the entire 11-monthperiod from June 2, 2014 to May 21, 2015.

The evidence does not demonstrate reasonable efforts by the Crown to have the affidavitsfinalized within a more reasonable time. Considering that some of the periods of inactivity extended over summer holidays and theChristmas holidays, I conclude that 4 months from the 11-month affidavit drafting period should be deducted from the total extraditionperiod which would apply as a discrete event. I am mindful that it is not the duty of this Court to micro-manage the dates and everyresponse time for this period.

However, the periods of inactivity are evident and need to be deducted. [63] Finally, I reject the Applicants’ submissions that the Crown failed to properly pursue voluntary surrender of the Applicants. While there is clearly no onus on the Applicants to prove that they acted reasonably, the evidence does not demonstrate that the Crownignored opportunities to negotiate a voluntary surrender.

The evidence demonstrates that there were some ongoing negotiations aboutthe terms of the voluntary surrender but that these were not actively pursued by the Applicants or the Crown until the Applicants’extradition was imminent. Communications were sporadic. For Mr. Govindia, it was not until he was actually arrested in the UK on an

extradition arrest warrant that those communications increased. [ 64 ] Finally, I am of the view that the Crown was reasonably diligent in pursuing voluntary surrender in parallel to the extradition process.

In some circumstances, it may be reasonable to first explore voluntary surrender but here, the Crown did so while actively pursuing extradition and I believe that it was a reasonable process to follow. [ 65 ] It is for these reasons that I conclude that the Crown has satisfied me that it was reasonably diligent in pursuing the extradition of the Applicants and that this qualifies as a discrete event which reduces the overall period of delay by 15 months for Mr. Barra and 15 months and 3 weeks for Mr. Govindia. [ 66 ] When I apply the discrete event to the net delay of 42 months for Mr.

Barra and 42 months and two weeks for Mr. Govindia, the result is: − for Mr. Barra: 27 months; and, − for Mr. Govindia: 26 months and 3 weeks. [ 67 ] The Applicants have not addressed the issue of demonstrating that in these circumstances a total delay which is below the presumptive ceiling is nonetheless unreasonable. Exceptional Circumstance: Complexity [ 68 ] While I have concluded that the total delay falls below the presumptive ceiling of 30 months for both Applicants, the recent decision of the Court of Appeal for Ontario in R. v.

Picard , 2017 ONCA 692 speaks to the issue of complexity and how the Court should view it as part of the Jordan analysis. [ 69 ] I have exercised my discretion to deduct 4 months from the extradition process during which the Crown did not reasonably pursue the extradition process. However, one could argue that I should deduct more than 4 months from the extradition delay or that only the time during which the extradition is in the control of the foreign state should be counted as a discrete event.

In such a circumstance, the delay relating to the extradition as a discrete event could be as little as 7 months (end of June 2015 to end of January 2016).

This would leave the total delay to be in the range of 35 months and thus I would need to consider the issue of complexity. [ 70 ] The direction of the Court of Appeal in Picard translates very well to this extradition case and I highlight the following features of the complexity of this case: − Crown disclosure which exceeds 2,800 documents and 30,000 pages; − a three-week preliminary inquiry had been set prior to the Crown preferring the indictment; − the charges are made pursuant to the Corruption of Foreign Official Act which is a rarely used statue with little case law to guide the Crown; − there will be a need for expert evidence to present the control of Air India by the Indian government; and − the matter involved three co-accused; [ 71 ] Finally, the overall complexity of the extradition process which commenced in June 2014 and concluded in January 2016.

While I have found that 4 months were lost for lack of diligence by the Crown, the period still amounts to 17 months before a preliminary hearing date was set. [ 72 ] When I consider the overall complexity of the case as a whole and particularly the complexity and delay required by the extradition process at the early stages, I would have no difficulty concluding that this case satisfies the requirement of being a particularly complex case because of the nature of the proceedings, the inordinate time spent on extradition and significant preparation time required to proceed to trial.

As such, any period above the presumptive ceiling is justified. Conclusion [ 73 ] For the reason set out above, I conclude that: − the overall delay applicable for Mr. Barra at 27 months is below the presumptive ceiling and this is not a case in which the Applicants can establish that a delay below 30 months is unreasonable under s. 11(

b) of the Charter ; − the overall delay applicable for Mr. Govindia at 26 months and 3 weeks is below the presumptive ceiling and this is not a case in which the Applicants can establish that a delay below 30 months is unreasonable under s. 11(

b) of the Charter ; − even if the total delay were above the presumptive ceiling, the particular complexities of this case justify the total delay being above the presumptive ceiling. [ 74 ] For all these reasons, I find that the Applicants’ rights under 11(

b) have not been infringed and the application for a stay of proceedings is dismissed.

Justice Marc R. Labrosse Released: 2017/10/06 CITATION : R. v. Barra and Govindia, 2017 ONSC 6008 COURT FILE NO.: 16-20006 DATE: 2017/10/06 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent – and – ROBERT THOMAS BARRA Respondent – and – SHAILESH HANSRAJ GOVINDIA Respondent RULING ON STAY APPLICATION PURSUANT TO S. 11(

B) OF THE CHARTER Justice M. Labrosse

Released: 2017/10/06